1.

By its request for a preliminary ruling, the Conseil d’État (Council of State, France) asks the Court, on the one hand, to interpret Commission Decision 2005/239/EC of 14 July 2004 concerning certain aid measures applied by France to assist fish farmers and fishermen ( 2 ) (‘the contested decision’) and, on the other, to clarify the extent of the recovery obligation imposed on the French Republic pursuant to that decision.

2.

The request has been made in the context of an appeal brought by the ministre de l’Agriculture et de l’Alimentation (Minister for Agriculture and Food) (‘the Minister’) against a judgment of the cour administrative d’appel de Nantes (Administrative Court of Appeal, Nantes, France) by which that latter court upheld the annulment of an order for payment issued by the directeur régional des finances publiques de Bretagne (Regional Director of Public Finances for Brittany) against Compagnie des pêches de Saint-Malo (‘the Company’) for recovery of a sum of money in respect of aid allegedly received by that company pursuant to national measures which are the subject of the contested decision.

3.

By letter of 21 June 2000, the French Republic informed the European Commission of the compensation measures which it had adopted for fishermen and fish farmers adversely affected by the oil pollution caused by the wreck of the vessel Erika in the Bay of Biscay on 12 December 1999 and the violent storms of 27 and 28 December 1999. ( 3 ) Those measures consisted, on the one hand, of a series of exceptional aid measures, adopted by circular of 2 February 2000, intended to assist the fishermen and aquaculture producers of six departments of western France (Finistère, Morbihan, Loire-Atlantique, Vendée, Charente-Maritime and Gironde) adversely affected by these events and, on the other, of a decision to reduce social security contributions by 50% for a period of three months for aquaculture producers and six months for fishermen, adopted by two new circulars of 15 April and 13 July 2000. This second measure applied to mainland France and overseas departments.

4.

The Commission considered most of the measures adopted by the circular of 2 February 2000 to be compatible with the common market. ( 4 ) By contrast, by letter of 11 December 2001, the Commission notified the French Republic of its decision to initiate the formal investigation procedure provided for in Article 88(2) of the EC Treaty in respect of the other measures including, inter alia, the ‘additional measure reducing social security contributions’ for fishermen, implemented for the period from 15 April to 15 October 2000. ( 5 )

5.

This reduction applied to ‘employers’ and employees’ contributions’ ( 6 ) paid to the Établissement National des Invalides de la Marine (ENIM). ( 7 ) With regard to the procedures for applying the reduction, the Commission explains in recital 20 of the contested decision that ‘the rate of reduction of contributions to the ENIM was 50% for both employees’ and employers’ contributions. However, in the case of certain vessels for which the share payment system is not applied, the part of the employers’ contributions taken over was increased to 75%. France explained this different rate by the fact that, in the case of share payment, there is a close financial solidarity between the owners and the crew in the face of difficulties encountered in the course of fishing activities, particularly as regards reduced turnover, whereas in the case of industrial ship owners, in which this type of payment does not exist, the owners de facto bear the greater part of economic difficulties’.

6.

The measure reducing social security contributions for fishermen was intended, with other additional measures, to take account, in particular, of the damage suffered by undertakings in the fisheries sector because of the deterioration of the market. ( 8 ) According to the French authorities, there had been a general downturn in the market for fisheries products, with a sustained fall in demand because of consumers’ concerns about the health implications of the oil pollution. ( 9 ) According to the Commission, however, the statistics provided by the French Republic were contradicted by other official data which had come to its knowledge. ( 10 ) In the light of those data, the Commission formed the view that serious doubts existed as to the compatibility of that measure with common market rules, since the measure had the characteristics of operating aid.

7.

It was not possible to dispel those doubts during the formal investigation procedure. After a thorough examination of the market situation for fisheries products during the first quarter of 2000, ( 11 ) the Commission concluded, in recital 98 of the contested decision, that, on the basis of the information at its disposal, ‘the nationwide reduction of social security contributions granted to fishermen for the period 15 April to 15 October [could not] be considered compatible with the common market under Article 87(2)(b) [EC]’. In recital 99 of that decision, it held that ‘as operating aid granted to all fishing businesses without any obligation on the part of the recipients, this aid [was] incompatible with the common market by virtue of the third indent of the fourth paragraph of section 1.2 of the 1997 Guidelines’. ( 12 )

8.

Article 3 of the contested decision thus found ‘the aid granted by France to fishermen in the form of a reduction of social security contributions for the period 15 April to 15 October 2000 … incompatible with the common market’. Under Article 4(1) of that decision, ‘France shall take all necessary measures to recover from the beneficiaries the aid referred to in [Article] 3 and unlawfully made available to the beneficiaries’. Article 4(2) provided that ‘recovery shall be effected without delay and in accordance with the procedures of national law provided that they allow the immediate and effective execution of the Decision. The aid to be recovered shall include interest from the date on which it was at the disposal of the beneficiaries until the date of its recovery’.

9.

The contested decision was not challenged before the General Court.

10.

On 23 December 2009, after having repeatedly asked the French Republic to comply with the contested decision, the Commission brought an action for failure to fulfil obligations under Article 108(2) TFEU. By judgment of 20 October 2011, Commission v France ( 13 ) (‘the Commission v France judgment’), the Court held that, ‘by failing to implement, within the prescribed period, [the contested decision], by recovering from the recipients of the aid declared unlawful and incompatible with the common market by [Article] 3 of that decision, the French Republic has failed to fulfil its obligations under the fourth paragraph of Article 288 TFEU and Article 4 of that decision’. ( 14 ) In paragraphs 42 and 43 of that judgment, the Court rejected the argument put forward by the French Republic according to which the sums corresponding to the reductions in social security contributions, paid by the undertakings to the competent authorities on behalf of employees, should not have to be repaid. It stated, first of all, in paragraph 42, that ‘that argument [amounted] in reality to calling into question the Commission’s assessment in the [contested] decision of whether the reduction of employers’ and employees’ contributions constitutes State aid within the meaning of Article 107(1) TFEU’. Next, in paragraph 43, in accordance with settled case-law, the Court held that ‘in the context of [an] action which concerns the failure to implement a decision on State aid which has not been referred to the Court by the Member State to which it is addressed, that Member State is not justified in challenging the lawfulness of such a decision’. ( 15 )

11.

On 22 February 2013, an order for payment was issued against the Company for EUR 84 550.08, corresponding to the reductions in employees’ contributions due between 15 April and 15 July 2000, together with interest for late payment. By judgment of 25 June 2015, the tribunal administratif de Rennes (Administrative Court, Rennes, France) annulled that order for payment. By judgment of 14 April 2017, the cour administrative d’appel de Nantes (Administrative Court of Appeal, Nantes) dismissed the appeal brought by the ministre de l’Environnement, de l’Énergie et de la Mer (Minister for the Environment, Energy and the Sea) against the judgment of the Administrative Court.

12.

The Minister appealed on a point of law against that judgment before the referring court, claiming, inter alia, that the appeal court had, on the one hand, erred in law in finding that the exemptions from employees’ contributions had not benefited fisheries undertakings despite the fact that they had been classified as State aid by the Commission, and, on the other, distorted the evidence before it in finding that it was apparent from the file that the reduction in employees’ contributions had automatically had the effect of increasing the amount of net salary paid to employees.

13.

The Conseil d’État (Council of State), on the one hand, set aside the judgment of the Cour administrative d’appel de Nantes (Administrative Court of Appeal, Nantes), in so far as the latter had omitted to rule on the ground of appeal seeking annulment on the basis that the tribunal administratif de Rennes (Administrative Court, Rennes) had not ruled on the plea raised by the Minister that the application brought by the Company was inadmissible due to its complaint having been made out of time and, on the other, set aside the judgment of the tribunal administratif de Rennes (Administrative Court, Rennes) by reason of that omission. Le Conseil d’État (Council of State) thus decided to consider and to rule forthwith on the claim made by the Company before the tribunal administratif de Rennes (Administrative Court, Rennes).

14.

Having rejected the plea of inadmissibility raised by the Minister, the Conseil d’État (Council of State) rejected the two pleas in law raised by the Company, alleging, first, that the order for payment at issue in the main proceedings infringed the principles of protection of legitimate expectations and legal certainty and, second, a delay on the part of the State to recover the sums of money covered by that order. Next, in accordance with the Court’s case-law pursuant to the judgment of 9 March 1994 in TWD Textilwerke Deggendorf ( 16 ) (‘the TWD judgment’), it rejected the request made by the Company that a question concerning the validity of the contested decision be referred to the Court for a preliminary ruling under Article 267 TFEU. The Conseil d’État (Council of State) took the view that, as the actual beneficiary of individual aid granted under an aid scheme, recovery of which had been ordered by the Commission, the Company was directly and individually concerned by the contested decision within the meaning of Article 263 TFEU and that, having failed to challenge it before the General Court, it could not challenge its validity in contentious proceedings directed against the measures implementing that decision taken by the national authorities.

15.

The Conseil d’État (Council of State) then observed that, under Article L. 741‑9 of the code rural et de la pêche maritime (Rural and Maritime Fishing Code) and Article 4 of the décret du 17 juin 1938 relatif à la réorganisation et à l’unification du régime d’assurance des marins (Decree of 17 June 1938 relating to the reorganisation and consolidation of the insurance scheme for mariners) (JORF of 29 June 1938, p. 7500), employers’ contributions to the agricultural workers’ scheme and the mariners’ scheme are payable by employers, while employee contributions are payable by employees. Employees’ contributions are not borne by the employer but are merely deducted by him from the earnings of the insured persons every payday and reductions in employees’ contributions are passed on to employees, who receive a higher net wage and are the direct beneficiaries thereof. The Conseil d’État (Council of State) noted, however, that this reduction in employees’ contributions could be regarded as having constituted an indirect advantage for the undertaking since, during the relevant period, it gained a certain attractiveness through the higher salaries received by its employees over the period of six months.

16.

It is in those circumstances that the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

17.

The Company, the French Government and the Commission lodged written observations before the Court. At the hearing on 20 November 2019, those interested parties made oral submissions.

18.

The Commission submits, as its principal argument, that the request for a preliminary ruling from the Conseil d’État (Council of State) is inadmissible. It considers that the two questions referred for a preliminary ruling, whilst formulated as questions of interpretation, in fact call into question the validity of the contested decision, in so far as it also classified as State aid the reductions in employees’ contributions and ordered the recovery of the amounts corresponding to those reductions. As questions of validity, they are, however, inadmissible in the light of the case-law arising from the TWD judgment. The Company is not entitled to challenge the validity of the contested decision in the context of national proceedings relating to its enforcement, in so far as it did not challenge that decision in good time before the General Court even though it undoubtedly had standing to bring proceedings under the fourth paragraph of Article 263 TFEU.

19.

I note at the outset that the Commission’s reading of the questions referred fails to convince me.

20.

It is, admittedly, true that the first question referred is not limited to asking the Court to clarify whether the reduction in employees’ contributions is affected by the declaration of incompatibility set out in the contested decision, but suggests that an interpretation of that decision along those lines might be contrary to Article 107(1) TFEU on the ground that that reduction does not benefit the undertakings. However, the mere fact that the referring court raises the possibility that a particular reading of the contested decision is contrary to a provision of primary law does not have the effect of altering the nature of that request, by which the Court is called upon to rule on the interpretation of subordinate legislation and not to assess the validity thereof. Accordingly, even if the Court were to conclude that several interpretations of the contested decision are possible and that the interpretation according to which the reductions in employees’ contributions are constitutive of State aid should be rejected on the ground that it infringes Article 107(1) TFEU, that finding would be within the limits of a simple interpretation in line with EU law, which would not lead to a (partial) declaration of invalidity in respect of that decision.

21.

The intention of the referring court to submit an application for interpretation is, moreover, confirmed by the fact that, as I have noted in point 14 of this Opinion, the referring court expressly rejected the request made by the Company that a question concerning the validity of the contested decision be referred to the Court for a preliminary ruling, on the same grounds as those invoked by the Commission in support of its submission that the request for a preliminary ruling is inadmissible.

22.

In addition, I note that, even if, by virtue of its wording, the first question referred for a preliminary ruling must be read as a question concerning the validity of the contested decision, the second question referred is clearly a request for interpretation. It follows that, contrary to what the Commission maintains and notwithstanding the fact that that second question referred is raised only if the first question referred is answered to the effect that the contested decision also covers the reductions in employees’ contributions, the request for a preliminary ruling cannot, in any event, be declared inadmissible in its entirety.

23.

In the light of all of the foregoing, I propose that the Court should reject the plea of inadmissibility raised by the Commission.

24.

That being said, it is not inconceivable that the Court may question the validity of the contested decision of its own motion. I will therefore examine below whether the conditions for such a point to be raised by the Court of its own motion have been met in the present case.

25.

The Court has previously raised questions of validity of its motion, either by adding a question of validity to the questions of interpretation submitted by the referring court, ( 17 ) or by reformulating a question of interpretation and reading it as a question pertaining to validity. ( 18 )

26.

As far back as 1965, the Court claimed such jurisdiction to raise a point of its own motion in holding, in the Schwarze judgment, ( 19 ) that ‘if it appears that the real purpose of the questions submitted by a national court is concerned rather with the validity of Community measures than with their interpretation, it is appropriate for the Court of Justice to inform the national court at once of its view without compelling the national court to comply with purely formal requirements which would uselessly prolong the procedure under Article 177 [of the EEC Treaty] and would be contrary to its very nature’. ( 20 )

27.

In order not to encroach on the principle that it is for the referring court alone to determine the subject matter of the questions which it intends to refer, the Court tends, however, not to exercise that power where the referring court seeks solely to obtain an interpretation of a secondary act of EU law, without stating that it has any doubts as to its validity or that any such question was raised before it in the case in the main proceedings. ( 21 )

28.

Furthermore, the Court has held that it is important that the national court should indicate, in particular, the precise reasons which have led it to question the validity of certain provisions of EU law and set out the grounds of invalidity which appear to it capable of being upheld. ( 22 ) The existence of a challenge to the validity of an EU act before the national court is not therefore sufficient by itself to justify the submission of a request for a preliminary ruling to the Court. ( 23 )

29.

In the present case, it is apparent from the order for reference and from the national case file lodged with the Registry of the Court that the action brought by the Company before the tribunal administratif de Rennes (Administrative Court, Rennes) directly challenged the validity of the contested decision, in so far as it also declared the reductions in employees’ contributions to be incompatible with the common market. The Conseil d’État (Council of State), on the assumption that the Company had failed to question the validity of the contested decision in good time, has not expressly adopted a position on this point. However, by stating that reductions in employees’ contributions did not directly benefit the undertakings and could not therefore come within the scope of Article 107 TFEU, that court indirectly raises doubts as to the validity of the contested decision.

30.

In a different context, however, those circumstances were, until recently, considered sufficient by the Court for it to raise of its own motion the question of the validity of a measure the interpretation alone of which has been sought by the referring court. ( 24 )

31.

On the basis of the foregoing considerations, I therefore take the view that the conditions have been met for the Court to raise of its own motion the complaint that the contested decision is invalid, which has been the subject of discussion in the present proceedings.

32.

However, in the circumstances of the present case, the Court’s raising of a point of its own motion would be possible only if, contrary to what the Commission maintains and what the Conseil d’État (Council of State) has held, the time-barring effect provided for by the case-law arising from the TWD judgment cannot be invoked against the Company, ( 25 ) an issue which will be examined below.

33.

In paragraph 17 of the TWD judgment, the Court noted that, in particular for reasons of legal certainty, it is not possible for a recipient of State aid – which was the subject of a Commission decision that was directly addressed solely to the Member State from which that recipient comes – which could undoubtedly have challenged that decision on the basis of Article 263 TFEU and which allowed the mandatory time limit laid down in the sixth paragraph of that provision in order to bring such an action to pass, effectively to call into question the lawfulness of that decision before national courts in an action brought against measures taken by the national authorities for the purpose of implementing that decision. ( 26 ) According to the Court, to accept that in those circumstances the recipient of the aid could challenge the implementation of such a decision in proceedings before the national court on the ground that the decision was unlawful would in effect enable the person concerned to overcome the definitive nature which the decision assumes as against that person once the time limit for bringing an action has passed. ( 27 )

34.

The Court has recalled and confirmed on several occasions the principles established in the TWD judgment, ( 28 ) including in very different legal and factual circumstances to those giving rise to that judgment. ( 29 ) However, it is only in a limited number of cases that the Court has found the request for a preliminary ruling on validity to be inadmissible on the basis of those principles. ( 30 )

35.

In accordance with the TWD case-law, the time-barring effect of the passing of time limits provided for in the sixth paragraph of Article 263 TFEU, in the absence of the bringing of an action for annulment within the meaning of that article before the court with jurisdiction to hear such an action (the General Court), applies only where the natural or legal person pleading the unlawfulness of an EU act in national proceedings, in order to encourage the national court to submit a request for a preliminary ruling to the Court concerning the validity of that act, ‘undoubtedly’ has ‘manifest and unquestioned standing’ ( 31 ) to bring an action for annulment of that act. ( 32 )

36.

It is therefore necessary to determine whether that is the case with regard to the Company, which, in so far as it is not the addressee of the contested decision, could have had standing to institute proceedings against it only under the second limb of the fourth paragraph of Article 263 TFEU (formerly the fourth paragraph of Article 230 EC), that is to say, only if it could have demonstrated that the decision was of direct and individual concern to it.

37.

In that regard, first, I observe that, according to the Court’s settled case-law, the condition that a natural or legal person must be directly concerned by the decision being challenged, as provided for in the fourth paragraph of Article 263 TFEU, requires two cumulative criteria to be met: (i) the contested measure must directly affect the legal situation of the individual; and (ii) it must leave no discretion to the addressees entrusted with the task of implementing it, such implementation being purely automatic and resulting solely from EU rules without the application of other intermediate rules. ( 33 ) The Court has thus held that a Commission decision ordering the recovery of State aid directly affects the recipients even though that decision still requires a national implementing measure. ( 34 )

38.

Second, it is also settled case-law that persons other than those to whom a decision is addressed may claim to be individually concerned by that decision only if it affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the person to whom such a decision is addressed. ( 35 )

39.

The Court has repeatedly held in the field of State aid that decisions of the Commission authorising or prohibiting a national scheme are of general application, resulting from the fact that such decisions apply to objectively determined situations and produce legal effects with respect to a category of persons envisaged in a general and abstract manner. ( 36 ) Thus, the Court has held that an undertaking cannot, as a general rule, challenge a decision of the Commission which prohibits a sectoral aid scheme if that undertaking is concerned by that decision solely by virtue of belonging to the sector in question and being a potential beneficiary of that scheme. ( 37 )

40.

However, according to equally well-established case-law, the actual beneficiaries of individual aid granted under a State aid scheme which the Commission has ordered to be recovered ( 38 ) are, accordingly, individually concerned within the meaning of the fourth paragraph of Article 263 TFEU, ( 39 ) even if actual recovery will be implemented only in a subsequent phase in which it is to be established whether the advantages received actually constitute State aid which has to be repaid. ( 40 ) According to the Court, the order for recovery already concerns all the beneficiaries of the system in question individually ‘in that they are exposed, as from the time of the adoption of the contested decision [by the Commission], to the risk that the advantages which they have received may be recovered, and thus find their legal position affected’. ( 41 ) Those beneficiaries are therefore members of a limited class within the meaning of the case-law arising from the judgment of 17 January 1985 in Piraiki-Patraiki and Others v Commission. ( 42 ) The mere possibility that, subsequently, the advantages declared unlawful may not be recovered from their beneficiaries ‘does not exclude the latter from being regarded as individually concerned’. ( 43 ) In the Comitato ‘Venezia vuole vivere’ judgment, the Court also expressly rejected the Commission’s argument that recognition of the admissibility of actions against a decision of the Commission ordering the recovery of State aid would have the ‘paradoxical and perverse’ effect of requiring the beneficiaries of the State aid to challenge that decision immediately, before even knowing whether it would lead to a recovery order concerning them. ( 44 ) That case-law has recently been confirmed, in the context of applying the time-barring effects resulting from the TWD judgment, by the Georgsmarienhütte judgment, ( 45 ) pursuant to which the referring court rejected the request of the Company that a preliminary ruling be sought from the Court as to the validity of the contested decision.

41.

Although the case-law cited in the previous point was clarified after the time limit for challenging the contested decision had passed, ( 46 ) its principles had already been affirmed in the Italy and Sardegna Lines v Commission ( 47 ) and Italy v Commission ( 48 ) judgments, with the result that it can easily be stated that the admissibility of any action brought by the Company in 2004 against the contested decision would, most likely, have been admitted by the General Court.

42.

It is true that the aid scheme which is the subject of the contested decision differs from the corresponding schemes in the cases which gave rise to the judgments in Italy and Sardegna Lines v Commission and Italy v Commission. The arrangements at issue in those cases had been implemented through different administrative measures, involving the exercise of a certain margin of discretion, by virtue of which the applicants were granted actual aid, ( 49 ) whereas the aid declared incompatible by the contested decision consisted of exemptions from social security contributions applicable to all operators in the sector.

43.

However, first, the characteristics of the aid schemes in question do not appear to have been especially taken into account by the Court in the judgments in Italy and Sardegna Lines v Commission, and Italy v Commission. Second, in the judgment of 28 November 2008, Hotel Cipriani and Others v Commission, ( 50 ) relating to actions brought in 2000, the relevance of the criterion concerning the detailed arrangements for the implementation of the aid scheme, strongly supported at the time by the Commission, was expressly rejected. ( 51 )

44.

Likewise, while, in paragraph 39 of the Italy v Commission judgment, the Court stated that the fact that the number of applications accepted and the amount budgeted for the aid in question in the case giving rise to that judgment had been specified in the contested decision, with the result that ‘the Commission must … have known of the existence of [the] actual recipients’ of the aid in question, the idea that it is not essential, in order to establish individual concern, to know the number or even the identity of the persons to whom the contested decision applies, but rather that the group of persons affected by the measure is a closed one, such as the actual beneficiaries of an aid scheme the application of which has been discontinued, was already well-established in the case-law. ( 52 ) Thus, the fact that the aid at issue in the contested decision consists in the nationwide reduction of social security contributions granted to fishermen applied to the whole of metropolitan France and to the overseas departments and that the decision does not therefore contain specific information concerning the number of beneficiaries or the precise amount of the aid, ( 53 ) would probably not, in itself, have been a sufficient reason for the General Court to depart from the solution upheld in the Italy and Sardegna Lines v Commission and Italy v Commission judgments. That finding is, moreover, supported by the judgment in Hotel Cipriani and Others v Commission. ( 54 )

45.

In my view, however, the foregoing considerations are not sufficient for the time-barring effects provided for by the case-law arising from the TWD judgment to be capable of being invoked against the Company.

46.

On the one hand, I am not convinced that, in 2005, the Company would ‘undoubtedly’ have been able to bring an admissible challenge against the contested decision before the General Court. The case-law cited in point 40 of this Opinion was not yet, at that time, sufficiently consolidated to enable such a conclusion to be drawn.

47.

On the other, I note that, in the field of State aid, with the exception of the Georgsmarienhütte judgment, the Court has recognised that time-barring effect only in respect of beneficiaries of individual aid. ( 55 ) In the judgment of 23 February 2006, Atzeni and Others, ( 56 ) relating to a decision which concerns aid schemes intended for categories of persons defined in a general manner, the Court held, by contrast, that it was not self-evident that an action for annulment of the contested decision brought by those aid recipients would have been admissible. ( 57 )

48.

With regard to the Georgsmarienhütte judgment, it should be noted that the circumstances of the case giving rising to that judgment were very specific. The actual beneficiaries of aid granted by the German authorities in the form of surcharge reductions in the energy sector had challenged the Commission decision to initiate the formal investigation procedure in respect of those measures. In the context of those actions, they had taken cognisance of the final decision declaring that aid to be incompatible with the internal market and ordering recovery of the aid already granted. ( 58 ) Unlike the other undertakings concerned by the aid in question, instead of bringing a separate action for the annulment of that decision and before the expiry of the period for bringing an action, they challenged the orders for recovery of the aid which had been granted to them, communicated to them by the German authorities several days after the adoption of that decision. ( 59 )

49.

Lastly, given the characteristics of the aid scheme which is the subject of the contested decision, and having regard to the fact that that decision was taken four years after the aid had been granted and that, on the date of expiry of the period for challenging that decision, the French Republic had not yet started to identify the beneficiaries of the aid in question, ( 60 ) it is not inconceivable that questions concerning the inclusion of the Company in the recovery proceedings could have been raised before the General Court, thus leading the latter to doubt whether the applicant had a genuine and real legal interest in bringing proceedings, as was the case with regard to the applicants in the cases which gave rise to the order of 10 March 2005, Gruppo ormeggiatori del porto di Venezia and Others v Commission. ( 61 )

50.

In the light of all the foregoing reasons, I consider that the Conseil d’État (Council of State) erred in its view that the time-barring effects provided for in the case-law resulting from the TWD judgment could be invoked against the Company. Consequently, if the Court, contrary to my view set out in points 18 to 23 of this Opinion, were to interpret the first question referred for a preliminary ruling as concerning the validity of the contested decision, that question should, in my opinion, be considered admissible. Likewise, if the Court were to decide to examine the validity of the contested decision of its own motion, the TWD judgment would not preclude its doing so.

51.

I will examine, first of all, the first question referred, since it concerns the interpretation of the contested decision and, therefore, it is logically the first issue to be addressed. Next, I will discuss the validity of that decision, in so far as the Court should interpret it as also declaring the reductions in employees’ contributions to be incompatible with the common market. Lastly, I will answer the second question referred.

52.

By its first question, which, I reiterate, raises, in my view, only a question as to interpretation of the contested decision, ( 62 ) the referring court asks the Court, in essence, whether that decision must be interpreted as declaring that only the reductions in employers’ contributions are incompatible with the common market. The Company considers that that question should be answered in the affirmative, taking into account both the wording of the contested decision and the Commission’s decision-making practice. In addition, it submits, such a reading is also necessary in order to ensure an interpretation that is in line with Article 87(1) EC (now Article 107(1) TFEU). By contrast, the French Government and the Commission, basing themselves on a largely systematic reading of the contested decision, consider that that decision must be interpreted as covering the reductions in both employers’ contributions and employees’ contributions. Those parties claim that the Court has already ruled to that effect in the Commission v France judgment.

53.

First of all, that last argument must be rejected at the outset. It is clear, to my mind, that, in the Commission v France judgment, not only did the Court not rule in any way on the validity of the contested decision, ( 63 ) but it also did not adopt a position on the interpretation of that decision, at least not with regard to the point raised in the first question referred. It is apparent from paragraph 23 of that judgment, as well as from the case file in the proceedings which gave rise to that judgment, that, by its argument, the French Republic sought to challenge the obligation to repay the sums corresponding to the reductions in employees’ contributions and not to ask the Court to clarify whether the order for recovery set out in that decision also related to those reductions. ( 64 ) It is true that, in paragraph 42 of the Commission v France judgment, the Court held that the ‘argument’ put forward by the French Republic concerning ‘the recovery of employees’ contributions’ ‘amounted to contesting the Commission’s assessment in the [contested] decision that the reductions in employers’ contributions and employees’ contributions are constitutive of State aid within the meaning of Article 107(1) TFEU’. However, leaving aside its wording, and given the context in which it was made, I take the view that that statement can be seen only as being a position adopted on the qualification of the argument raised by the French Republic as a ground of challenge relating to the validity of the contested decision. By contrast, it would be misconceived, in my judgement, to view that statement as being a position adopted by the Court, which is unreasoned and the product of circular reasoning, on the interpretation of the contested decision which is, moreover, final.

54.

That said, like all the interested parties which lodged written observations before the Court, I note that it is not entirely clear on the basis of the operative part of the contested decision alone whether ‘the aid granted by France to fishermen in the form of a reduction of social security contributions’, referred to in Articles 3 and 4 of that decision, covers the reductions in both employers’ and employees’ contributions. As the French Government has rightly observed, the operative part of an act is indissociably linked to the statement of reasons for it and must, if need be, be interpreted by taking account of the reasons which led to its adoption. ( 65 )

55.

Although Part II of the contested decision, which is entitled ‘Description’, does not, stricto sensu, form part of the grounds on which the operative part was reached, reference should nevertheless be made to it in order to determine which measures are actually covered by the operative part. In recital 4 of the contested decision, the Commission lists the measures in respect of which ‘the formal investigation procedure was initiated’. Among these, point 2 of recital 4 includes ‘additional measures to assist fish farmers and fishermen throughout France’. The first indent of point 2 refers to the ‘additional measure reducing social security contributions for all … fishermen (from 15 April to 15 October 2000) of mainland France and the overseas departments’. ( 66 ) Section II.B of the contested decision sets out the additional measures referred to in point 2 of recital 4. Recital 17 of that decision, set out in point 2 of that section, which is entitled ‘Reduction of social security contributions for fish farmers and fishermen’, states that ‘the Minister … decided (decisions issued in [two] circulars …) to grant all undertakings in the sector a 50% reduction in social security contributions for the period 15 April 2000 to 15 October 2000 for fishermen’. ( 67 ) Recital 18 provides that ‘this reduction applied to employers’ and employees’ contributions’. ( 68 ) Lastly, recital 20 states that ‘the rate of reduction of contributions to the ENIM was 50% for both employees’ and employers’ contributions’. Thereafter, the contested decision makes no further mention of employers’ and employees’ contributions separately, but refers only to ‘social security contributions’.

56.

It is apparent from the passages set out above that the contested decision describes the ‘additional measure reducing social security contributions’ for fishermen as applying to both employers’ and employees’ contributions. That description, which helps to define the subject of the formal investigation procedure, is not called into question at any point in the contested decision. In the scheme of that measure, the definition of the concept of ‘social security contributions’ therefore also covers employees’ contributions. The argument to the contrary put forward by the Company is not convincing. Even if there is, as that party maintains, a decision-making practice on the part of the Commission (and the Court) according to which the concept of ‘social security contributions’ covers only employers’ contributions, that could not call into question the indication to the contrary given by a reading of the contested decision itself.

57.

If we now turn to Part IV of that decision, dealing with the assessment of the measures which were the subject of the formal investigation procedure, it must be observed that there is nothing in that assessment to justify the view that the Commission sought to exclude from its analysis the part of the social security contribution relief measures which related to employees’ contributions.

58.

It follows from the foregoing considerations that, when read in the light of the reasoning behind it, the operative part of the contested decision must be considered to relate to both the reductions in employers’ contributions and the reductions in employees’ contributions. A reading of that decision as meaning that the reductions in employees’ contributions are excluded from the declaration of incompatibility and from the order for recovery set out in the operative part would run counter to the letter and general scheme of that decision. For that reason alone, the argument put forward by the Company, based on the requirement to ensure an interpretation of the contested decision that is in line with Article 87(1) EC (now Article 107(1) TFEU), must be rejected.

59.

In the light of all the foregoing, I take the view that the answer to the first question referred by the Conseil d’État (Council of State) is that Article 3 of the contested decision must be interpreted as also declaring the reductions in employees’ contributions granted by the French Republic to assist fishermen for the period from 15 April to 15 October 2000 to be constitutive of State aid incompatible with the common market and subject to the order for recovery set out in Article 4 of that decision.

60.

In order for a State measure to be able to come under Article 107(1) TFEU, it must be capable of being regarded as an advantage conferred on the recipient undertaking. ( 69 )

61.

Measures which, whatever their form, are likely directly or indirectly to favour certain undertakings ( 70 ) or are to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions are regarded as aid. ( 71 ) Accordingly, it is settled case-law that the concept of ‘aid’ encompasses advantages granted by public authorities which, in a variety of ways, mitigate the charges which are normally included in the budget of an undertaking and which, therefore, without being subsidies in the strict sense of the word, are similar in character and have the same effect. ( 72 )

62.

It is also settled case-law that a partial reduction of social security contributions devolving upon undertakings in a particular industrial sector constitutes aid within the meaning of Article 107(1) TFEU if that measure is intended partially to exempt those undertakings from the financial charges arising from the normal application of the general social security system, without there being any justification for that exemption on the basis of the nature or general scheme of that system. ( 73 )

63.

So far as concerns the concept of a ‘burden normally included in the budget of an undertaking’, the Court has taken the view that the existence of an advantage cannot be ruled out where the State finances supplementary pay that the undertaking is under no legal obligation to pay to its employees. ( 74 ) In that regard, in the judgment of 12 December 2002, Belgium v Commission, ( 75 ) the Court held that ‘the costs linked to employee pay naturally place a burden on the budgets of undertakings, irrespective of whether or not those costs stem from legal obligations or collective agreements’ and that the fact that the measures funded by the public authorities excluded from the outset any salary increase to be borne by the undertaking ‘does not prevent the … supplement [in question] from being a salary cost which would normally be incurred by that undertaking’.

64.

It also follows from the case-law that an economic advantage, which might give rise to State aid, may be granted even indirectly, by means of a measure directly benefitting other undertakings or subjects, including natural or legal persons, not engaging in any economic activity. ( 76 ) Accordingly, the fact that the direct beneficiaries of the aid to individuals are employees is not sufficient to demonstrate that no aid had been provided to their employer. ( 77 )

65.

It is in the light of those principles that it is necessary to assess whether, in taking the view that the reductions in employees’ contributions granted by the French Republic to assist fishermen for the period from 15 April to 15 October 2000 had the effect of reducing the burden normally included in their budget, the Commission vitiated the contested decision, as interpreted in points 18 to 23 of this Opinion, by an error of law, as maintained by the Company and, indirectly, by the referring court.

66.

Employees’ social security contributions, in the same way as employers’ social security contributions, help to determine the labour costs (or salary costs) of undertakings, which cover total expenditure incurred by the undertaking in return for the labour input of one employee. While the former are paid by employees and set against the gross earnings by the employer, the latter are borne by the employer. The employer is responsible for paying the sums corresponding to employers’ and employees’ social security contributions to the competent authorities. If a reduction in employers’ social security contributions is liable to confer a direct economic advantage on undertakings benefitting from that reduction, to the extent to which it reduces, by means of a measure corresponding to that reduction, the social security burden normally included in the budget of those undertakings, ( 78 ) can the same be said with regard to a reduction in employees’ social security contributions?

67.

I take the view that that question cannot be answered in the affirmative solely on the basis of the assertion that such a reduction in social security contributions reduces labour costs and, therefore, the burden normally included in the budget of the undertaking. The arguments put forward by the French Government and the Commission in support of their position are not limited to that assertion. They claim, indeed, that the fact that employees’ contributions are paid by the employer ‘on behalf’ of employees cannot rule out the possibility that a reduction in those contributions may confer a direct economic advantage on the undertaking benefitting from it, in so far as, first, it is the responsibility of the undertaking to pay the sums corresponding to employees’ social security contributions to the competent authorities, second, that reduction does not directly affect the salaries paid to employees, since it does not mean employees are paid the equivalent of their gross salary before the deduction of social security contributions or minus a lower amount of social security contributions, and third, the possibility of passing on, in whole or in part, a reduction in social security contributions necessarily requires a management decision to be taken by the undertaking and cannot have the effect that the employees replace the undertaking as the actual beneficiaries of the aid.

68.

In that regard, I note, in the first place, that while the undertakings benefitting from the reductions at issue in the main proceedings were required to pay sums corresponding to the social security contributions deducted at source from their employees’ salaries to the competent authorities, they were not liable for the contributions that, as confirmed by the referring court and not disputed by the parties to the dispute in the main proceedings, are to be borne by the employees. From that point of view, the situation of those undertakings differs from that of the beneficiary of a tax reduction in respect of an excise duty which was at issue in the cases giving rise to the judgment of 21 December 2016, Commission v Aer Lingus and Ryanair Designated Activity (‘the Ryanair judgment’), ( 79 ) to which the French Government refers. Such a duty, although intended to be passed on to consumers who will bear the economic burden of that duty, have an impact on the budget of the undertaking concerned, which is directly liable to pay that duty. ( 80 )

69.

In the second place, the existence of an obligation to pay sums corresponding to employees’ contributions to the competent authorities does not, by itself, permit the inference that the reduction in those contributions confers on the undertaking concerned a direct advantage equivalent to the amount corresponding to that reduction, as is apparent, albeit in a different context, from the judgment of 11 September 2014, Greece v Commission. ( 81 )

70.

In the third place, the fact that the reduction in employees’ social security contributions has no direct bearing on the salaries of the employees of the undertaking, but that it is only by the mechanism for withholding those contributions, operated by the undertaking, that that reduction is liable to be reflected in salary levels is also not, in my view, decisive, at least if and to the extent to which passing on the reduction is to be considered mandatory.

71.

The possibility that there was a legal obligation upon fisheries undertakings to adjust employees’ contributions by taking into account the reduction granted by the measures which are the subject of the contested decision is highly contentious in the present case. While the Company maintains that, had it not passed on that reduction to employees, the employer would have left itself open to the possible imposition of criminal penalties, ( 82 ) the French Government, relying on the Ryanair judgment, claims that such a passing on of the reduction is the result of a decision of the undertaking. The referring court also takes the view that the passing-on mechanism is the subject of a legal obligation, in accordance with the social security arrangements for fishermen.

72.

This is a crucial point. If the undertakings concerned by the reduction at issue in the main proceedings had no other option than to pass it on to their employees’ salaries, they cannot, in my opinion, be considered to be direct beneficiaries of that reduction.

73.

The Ryanair judgment, relied on by the French Government, does not make it possible to call that conclusion into question but, on the contrary, supports it. First of all, it should be noted, as a preliminary point, that that judgment is relevant to the question being discussed only to a limited extent, since the case giving rise to that judgment concerned the scope of the recovery obligation and not the existence of aid. ( 83 ) Next, I would point out that the issue in that case was whether the quantification and recovery of aid consisting in the reduction, for certain airlines, of an excise duty levied by Ireland in respect of every passenger embarking on a flight departing from an Irish airport should take account of the fact that the tax, and therefore the advantage resulting from that reduction, was normally passed on to air passengers. The Court answered that question in the negative, without adopting a definitive position on the question of whether there was a legal obligation to pass on the tax in question. ( 84 ) In so doing, the Court relied on, inter alia, the possibility that airlines which pass on that duty could retain the advantage obtained from the reduction in the rate of the duty by increasing the ticket price, excluding VAT, for flights subject to the lower rate. ( 85 ) Consequently, the economic passing-on of the aid, by keeping the ticket prices unchanged, or retaining it in whole or in part by increasing those prices, was a decision to be taken by the airlines on how to exploit the advantage granted to them. ( 86 )

74.

However, even if, as the Company claims and the referring court affirms, the undertakings concerned by the reductions in employees’ contributions at issue in the main proceedings were legally required to pass on, albeit retroactively, ( 87 ) that reduction to their employees’ salaries, it is clear that the situation of those undertakings differs from that of the airlines in the Ryanair judgment.

75.

It is true that the reductions in question could provide those undertakings with the opportunity to renegotiate the net salaries of their employees, as the French Government submits. However, I do not think it can be seriously argued that the discretion of an undertaking – even one subject to the constraints of a highly competitive market – to increase its prices is comparable to the discretion of an employer to revise downwards the gross salaries of its employees, in order to take advantage of a reduction in employees’ contributions, a fortiori in circumstances such as those at issue in the main proceedings, in which the reduction was applied only over a period of six months.

76.

In any event, neither the reality of such a discretion, nor, upstream, the existence of a legal obligation to pass on, even retroactively, the reduction in employees’ contributions to the salaries of employees of fisheries undertakings have been taken into account by the Commission in the contested decision in order to establish the existence of aid designed to effect that reduction and directly to benefit those undertakings. In my view, without taking, at the very least, those two factors into account, the Commission could not have arrived at such a conclusion.

77.

While it is true that neither the French Republic nor any other party concerned within the meaning of Article 108(2) TFEU challenged the aid character of the reductions at issue in the main proceedings during the formal investigation procedure which led to the adoption of the contested decision, the fact still remains that it is for the Commission to provide proof of the existence of State aid within the meaning of Article 107(1) TFEU. In particular, it is apparent from the Court’s case-law relating to the principles governing the administration of proof in the sector of State aid that the Commission is required to conduct a diligent and impartial examination of the contested measures, in order that it can have at its disposal, when adopting a final decision establishing the existence and, as the case may be, the incompatibility or unlawfulness of the aid, the most complete and reliable information possible for that purpose. ( 88 )

78.

It should be noted that the foregoing considerations do not exclude the possibility that the reduction in employees’ contributions at issue in the main proceedings conferred an indirect advantage on the undertakings concerned by those measures such as, as observed by the Conseil d’État (Council of State), greater attractiveness as an employer through the higher salaries received by its employees for six months, or even the possibility of recruiting at lower gross salaries during that period, and, generally, a decrease is production costs or an increase in productivity.

79.

However, I take the view that it is clear from the contested decision, in particular from recital 55 thereof, and it is confirmed by the Commission in its written and oral observations before the Court, that the advantage identified did not consist in an indirect benefit, but rather in the fact that the undertakings in question were exempt from charges that they would normally have had to pay, in so far as they were required to pay employees’ contributions of a lower amount. ( 89 ) Otherwise, it is for the Commission, at the very least, to clarify the character of such an indirect advantage. ( 90 )

80.

In the light of all the foregoing considerations, I propose that the Court should declare the contested decision invalid in so far as it classifies as State aid the reductions in employees’ contributions granted by the French Republic to assist fishermen for the period from 15 April to 15 October 2000.

81.

If the Court were to decide, as I suggest, to declare the contested decision invalid in part, it would not be necessary to answer the second question referred for a preliminary ruling. It is therefore in the alternative, in case the Court might not follow my suggestion, that I will briefly address that question.

82.

As I have already stated in point 79 of this Opinion, the advantage identified by the Commission in the contested decision consists in the fact that the undertakings concerned are required to pay to the competent authorities a lower amount in terms of employees’ contributions. It is logical that the recovery must therefore relate to an amount corresponding to the difference between the contributions paid at the normal rate and those paid at the reduced rate.

83.

Thus, if the Court were to decide not to address the question of the validity of the contested decision discussed in points 60 to 80 of this Opinion or if, having raised it of its own motion, the Court were to declare that decision valid, the only possible conclusion, in my opinion, would be that the undertakings concerned by the reductions at issue in the main proceedings are required to repay those contributions in full.

84.

The question whether, and to what extent, that reduction has been passed on by the recipient undertakings to their employees is, in such a context, in which only the question of recovery is to be taken into account, irrelevant, in accordance with the reasoning to be derived from the Ryanair judgment. ( 91 )

85.

Likewise, the judgment of 13 February 2014, Mediaset, ( 92 ) relied on by the Company, is irrelevant. In that judgment, the Court held, on the one hand, that when the Commission, faced with an aid scheme, is not in a position to identify exactly the amount of aid received by individual recipients, the specific circumstances of each of the recipients of that aid scheme can be assessed only at the stage of recovery of the aid, and, on the other, that it is for the national court, if the matter is brought before it, to rule on the amount of aid to be recovered by taking into account all the relevant information of which it has been made aware, and it cannot be excluded that, having regard to all those factors, the calculations made by the national court as regards the quantification of the amounts of aid to be repaid result in an amount equal to zero.

86.

However, the case in the main proceedings giving rise to that judgment concerned the recovery of aid in the form of the subsidised purchase of certain goods which indirectly benefited economic operators involved in the provision of services linked to the use of the subsidised goods. The quantification therefore involved complex calculations aimed at identifying the indirect advantage from which those operators had benefited as a result of the increase in sales of subsidised goods.

87.

By contrast, the contested decision, as I have already noted, identifies a direct advantage in favour of the undertakings concerned by the reductions at issue in the main proceedings, consisting in the exemption from the payment of charges that they would normally have had to pay. As the Court held in the judgment of 13 February 2014, Mediaset, ( 93 ) in order to ensure the effective implementation of a Commission decision declaring an aid scheme unlawful and incompatible with the internal market and ordering the recovery of the aid in question, the national court is bound by that decision.

88.

Lastly, whatever solution may be accepted by the Court, the recovery of the aid at issue in the main proceedings cannot in any event be requested from the employees of the undertakings to which the contested decision relates.

89.

On the basis of all of the foregoing considerations, in the event that the Court should not follow my proposal that it declare the contested decision invalid, I suggest that the answer to the second question referred should be that the undertakings benefiting from the reductions in employees’ contributions declared incompatible with the common market by the contested decision must be regarded as having received the full amount of those reductions.

90.

In the light of all of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Conseil d’État (Council of State, France) as follows:

Article 3 of Commission Decision 2005/239/EC of 14 July 2004 concerning certain aid measures applied by France to assist fish farmers and fishermen must be interpreted as meaning that the reduction in employees’ contributions granted by the French Republic to assist fishermen for the period from 15 April to 15 October 2000 should also be classified as State aid incompatible with the common market, subject to the order for recovery set out in Article 4 of that decision.

That decision is invalid in so far as it classifies that reduction as State aid within the meaning of Article 107(1) TFEU.